Commonwealth v. Soeuy, ESCR 2005-1883 (Mass. Super. 6/19/2006)
| Decision Date | 19 June 2006 |
| Docket Number | ESCR 2005-1883 |
| Parties | COMMONWEALTH OF MASSACHUSETTS v. SOEUN SOEUY |
| Court | Massachusetts Superior Court |
1. Introduction. The defendant Soeun Soeuy is charged with assault with intent to commit murder and assault and battery by means of a dangerous weapon based on the Commonwealth's allegation that he participated in the shooting of Suborn Sam on November 23, 2005. The defendant has filed a pretrial motion to suppress evidence of his identification and the fruits of a subsequent search by means of a warrant. Based on the credible evidence presented at the hearing on the defendant's motion, the court makes the following findings of fact and rulings of law.
2. Findings of Fact. On November 23, 2005, Mr. Suborn Sam was sitting in the front passenger seat of a parked car outside a Little Peach variety store in Lynn. He was with his girlfriend and her friend as well as her friend's young child who was seated behind Mr. Sam. The two women went into the store. Mr. Sam was approached by a group of people including two young men who were "talking trash" and two older men. He knew these people well from school and identified them by their nicknamesBTan and Flip and the defendant, who was known as Playboy. Mr. Sam had had problems in the past with the defendant's older brother. The two younger kids left the area and returned about one minute later in a Honda automobile. The defendant was the driver. Mr. Sam was still seated in the front passenger seat of the parked vehicle. He saw the Honda vehicle pull up beside his vehicle, and come to a stop. The defendant's younger brother was in the front seat and another young man was in the rear. The defendant yelled at Mr. Sam, "You still gang banging; you still using crack." Mr. Sam responded by stating "I don't want any trouble." The defendant then pulled out a handgun and fired it at Mr. Sam. The defendant was about fifty feet away. His vehicle was positioned in such a way that the defendant had to fire the gun across the front seat, past his younger brother and out the passenger side window toward the defendant. As soon as Mr. Sam heard a bang, he ducked. He heard what he assumed to be the bullet strike his vehicle. After firing, the defendant drove away in the direction of downtown Lynn. The sound of the gunshot caused the young child in the rear seat of Mr. Sam's care to wake up. Mr. Sam got out of his vehicle, went inside the variety store to let his girlfriend know what happened and to telephone the police who arrived within several minutes.
3. Officer Peter Panacopolous of the Lynn Police Department was the first responder. Mr. Sam, who officer Panacopolous knows by his nickname, Jello, stated "they wanted me to fight; the kid named Playboy was the driver and shot at me." Mr. Sam further stated that one shot was fired. He described the Honda Accord which the defendant was operating as maroon or purple. There was no tint in the windows of either vehicle and no obstruction between the vehicles. Mr. Sam told the police that the defendant lived only a couple of blocks away and gave the police his address. He said they probably had gone back home. Officer Panacopolous broadcast the information he had received to other officers, including the description of the Honda Accord vehicle as a dark colored sedan, and the suspect's nickname and street address. Shortly thereafter, Officer Panacopolous received a call from Sergeant Vaile who was aware from prior dealings that Mr. Sam was a member of a gang known as the "Asian Boys" and that the defendant and his siblings were members of a rival gang known as the Bloods, and had been to the defendant's home on numerous occasions,1 went to the defendant's home on a hunch that he would find the defendant and the others there. He drove there and saw a dark colored ("maroon or purple") Honda Accord in the driveway. Sergeant Vaile, who was in a police uniform, got out of his cruiser and felt the vehicle's tailpipe which was still warm. He called for other officers to meet him to look for the defendant.
4. Sergeant Vaile went to the second floor apartment, which he knew to be the home of the defendant and his family. He knocked on the second floor apartment door. There was no lock on the door. A man later identified as Mr. Soeuy, the defendant's father, who speaks a limited amount of English, answered the door. Sergeant Vaile asked, "where's Playboy?" Mr. Soeuy, who knew Sergeant Vaile and other officers for a number of years, stepped aside and Sergeant Vaile entered the kitchen. Another young person who was in the kitchen area with his father said "he's in the bedroom." Sergeant Vaile walked past him to what appeared to be a bedroom. He knocked on this door, and upon receiving no response he opened the door and told the defendant to come out. The defendant and three other persons came forward. Sergeant Vaile directed the group outside to the driveway and then radioed officer Panacopolous. Meanwhile, officer Panacopolous asked Mr. Sam if he would be willing to take a ride to see if he "could identify some suspects." He agreed. Mr. Sam was seated in the back seat of a police cruiser, which brought him to the corner of Oakville and Bennett Street. Mr. Sam knew that the defendant's home was six or seven houses down the street. While he sat in the police cruiser, Mr. Sam saw the police bringing a group of young people down the defendant's driveway and out to the street. Mr. Sam realized that Playboy, the young man who shot him, was among the persons in this group. At this point, officer Panacopolous said, "if you see any suspects let me know." The police cruiser then drove further down the street and parked in front of the defendant's home. Mr. Sam was asked to step out of the cruiser. He was asked by Sergeant Vaile, "Do you recognize anyone?" By this time, the four young people in question were standing on the sidewalk. Mr. Sam said he recognized all four of the people. Mr. Sam was asked, "Who was the driver?" Mr. Sam pointed to the defendant. There were three vehicles in the drivewayBa white sedan, an SUV, and a car described as maroon and purple, which Mr. Sam said was the car driven by the defendant. He pointed it out to the police. Officer Panacopolous drove the defendant back to the Little Peach Store. The entire procedure took only a few minutes. This was the only identification procedure conducted by the police since the incident.
5. Rulings of Law. The defendant raises three issues. First, he maintains that Sergeant Vaile violated the defendant's reasonable expectation of privacy when he entered the driveway of his home to inspect the vehicle. Second, he maintains that Sergeant Vaile's entry into the apartment without a warrant was unlawful. Third, he maintains that the show-up identification procedure was unnecessarily suggestive.
A. Inspection of the Honda vehicle. The information broadcast by officer Panacopolous and received by Sergeant Vaile, along with his background knowledge of the defendant's involvement in gang activity in Lynn, provided him at least with reasonable grounds to suspect (if not probable cause to believe) that the defendant was involved in the shooting when he arrived at the defendant's home.2
Whether an individual has a reasonable expectation of privacy depends on (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable. Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). The defendant bears the burden of establishing that police conduct intruded on a constitutionally protected reasonable expectation of privacy. Commonwealth v. Carter, 424 Mass. 409, 411-412 (1997).
An individual enjoys only a limited expectation of privacy in a driveway that is open to the public. Commonwealth v. Simmons, 392 Mass. 45, 48 (1984), quoting United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975) (). Generally, the police are not prohibited from entering such a driveway and making observations of the exterior of a motor vehicle. See Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 160 (1991) (); Commonwealth v. Simmons, 392 Mass. 45, 48-51 (1984) (). Contrast Commonwealth v. Hurd, 51 Mass. App. Ct. 12, 16 (2001)( ). There was no violation of the defendant's reasonable expectation of privacy when Sergeant Vaile entered the driveway of his home and felt the vehicle's tailpipe.
B. Warrantless entry into defendant's apartment. Once Sergeant Vaile determined that the car had only recently been operated he had probable cause along with exigent circumstances justified Sergeant Vaile's decision to enter the defendant's home without a warrant in order to search for the defendant.
Without a warrant, two conditions must be met for an entry to be valid: (1) there must be probable cause to believe that evidence of crime is or will be in a particular location; and (2) the circumstances must be so exigent, urgent, and unforeseeable that obtaining a warrant is impracticable. The Commonwealth bears the burden of establishing the existence of probable cause and exigent circumstances....
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